Newsday
Employer's Failure to Adhere to its Own Policy Exposes it to Liability Under Labor Law
by Carrie Mason-Draffen
Published: March 25, 2009

DEAR CARRIE: We have a handbook that clearly states our paid-leave policy. After one year we are eligible for two weeks of vacation and a combination of five sick and personal days. I also received the information in an e-mail. The handbook has not been amended since I was hired. Yet, last month my employer told us that when we are out, even if we are sick, the first five days off must be taken as vacation time. Can an employer change policy without changing the handbook?
- Time-Off Dictator?

DEAR TIME-OFF: You could have a claim under state labor law.

"If the employee can show her vacation days were being deducted for occurrences ... in violation of the employer's policy, the employee may assert a claim," said Carmelo Grimaldi of Meltzer, Lippe, Goldstein & Breitstone in Mineola,

New York State doesn't require employers to offer paid time off, but those who do must post the information or notify employees in writing. And companies must honor the terms of that policy.

"Thus, it appears your reader's employer has satisfied this notice requirement but - according to your reader's interpretation of the policies - failed to adhere to such policies," Grimaldi said. "Assuming the reader is correct, the employer's failure to adhere to its own policy exposes it to liability under labor law."

Those liabilities could include penalties in addition to the pay for vacation days illegally deducted, he said.

You or someone on your behalf should scrutinize the previous policy to determine whether you earned any vacation time under those rules and if they allow your employer to designate any absence as a vacation day.

The distinction would be particularly important if you accrued vacation under the old policy and plan to resign soon. If the old policy said you could get pay for accrued vacation time but not for sick or personal time, those vacation days would become even more important, according to Grimaldi.

Even though employers can unilaterally amend paid-time-off policies of nonunion employees, the companies still have to honor whatever benefits employees accrued under the previous policy, Grimaldi said. So the revisions cannot deprive them of time off already earned.

Also, employers can require employees who take leave under the Family and Medical Leave Act to use up their vacation days even though employers can unilaterally amend paid-time-off policies of nonunion employees, the companies still have to honor whatever benefits employees accrued under the previous policy, Grimaldi said. So the revisions cannot deprive them of time off already earned.